Wednesday, June 23, 2010

Criminal Lawyers Must Be "Capital Qualified" to Represent First Degree Murder Clients

Until the death penalty is waived on the record in a first degree murder case, it is considered a capital case. Contrary to popular belief, the state need not file a Notice of Intention to Seek the Death Penalty in order for the case to be a capital one. The filing of such a Notice simply triggers reciprocal discovery obligations on the defense regarding evidence of mental mitigation in the penalty phase. Florida Rule of Criminal Procedure 3.112 provides for minimum qualifcations for all defense counsel - whether public, court-appointed, or privately retained - when undertaking representation on a case where the death penalty has not been waived. These qualifications include at least five years of criminal trial experiece, including acting as lead counsel in murder cases tried to a jury, capital education requirements, familiarity with the use of psychiatric and forensic evidence, and trying two death penalty cases to completion as co-counsel. This is extremely important because, until one has handled these cases as co-counsel, and actually tried them, one is simply unprepared for the novel and unique body of law, awesome responsibility, and necessary perspective to act as lead counsel in a first degree murder case where the penalty of death is still on the table. Without these experiences, one simply cannot properly evaluate the case or effectively advise the client. No matter what the fee, when someone's life hangs in the balance, these cases are not the ones for counsel to cut their teeth. The ABA Guidelines regarding death penalty cases provide that the requirement of two highly qualified and experienced capital lawyers applys from the moment the client is taken into custody for a homicide which could potentially result in a sentence of death. Thus, it is unavailing and unethical for counsel to agree to represent a client charged with first degree murder with the hope that he or she will be able to persuade the state to waive the death penalty in the future. This violates the express provisions of the Rule, and frequently results in the attorney having to withdraw after the client's family has expended all their funds on a lawyer who cannot ethically continue. Moreover, this can result in subsequently appointed qualified counsel requesting to re-do the work done by non-qualified counsel, including motions and depositions. Unfortunately, until judges take immediate action in the matter of determining the qualifications of counsel, this problem will continue, as those who are precluded from first degree murder representation often are, predictably, unaware of the rules governing capital crimes.

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